Starting the silly season while socially out of practice: How employers can avoid a litigation hangover after the work Christmas party

Returning to work in the new "COVID-normal" – what does this mean for work celebrations?

Australians have endured a challenging period of lockdowns, COVID-19 outbreaks, cancelled personal and workplace festivities and many missed milestones. As vaccination rates across all states and territories of Australia continue to rise and we return to "COVID-normal", an end-of-year work function is a welcome addition to the agenda for Australian workplaces.

While festive events provide workplaces with an opportunity to celebrate, socialise and build a positive workplace culture, they also create a potential environment for employees to exhibit inappropriate conduct that could lead to legal consequences such as bullying, discrimination, sexual harassment or compensation claims, as well as health and safety breaches. The return of the office party comes with a new plot twist in 2021 – not only ensuring the function is COVID-safe when most states have a level of community transmission, but also ensuring staff display the standards of appropriate employee conduct expected for office functions at a time when they're socially "rusty" after months of working remotely.

What constitutes the "workplace"?

Employers owe employees a duty of care to ensure their safety and wellbeing, so far as is reasonably practicable. It is undisputed that this duty of care extends beyond the four walls of the office.

It also extends to any place where functions are carried out in connection with work and includes situations that are outside normal working hours, such as end-of-year parties. In some cases, the workplace can include an after-party or after-work drinks, even if unsanctioned by the employer.

With that in mind, it is important that employers stay informed and educated regarding appropriate COVID controls in addition to monitoring employee behaviour at such events. A COVID-Safe Plan is recommended for employers to respond to issues created by COVID-19, and particularly in circumstances where the employer is the host of work-related events.

Real examples

There are numerous notorious examples of employees exhibiting inappropriate workplace conduct at work functions that have resulted in legal fiascos for their employers, including:

• An employee who urinated over a restaurant balcony onto other people that were dining on the ground level at his work Christmas party. The employee was dismissed for misconduct and subsequently lodged a claim for unfair dismissal in the Australian Industrial Relations Commission (AIRC), which was unsuccessful.¹
• An employee who was injured by a propeller after being pushed off a pontoon boat at a Christmas party. The employer was subsequently found liable for the injury caused.²
• An employee who had sexual intercourse in front of other employees in a hotel room, which was booked by a group of employees, after the end of a work party. The employee lodged an unfair dismissal application after her employment was terminated. The AIRC held that the employee's conduct was not so serious as to warrant the termination of her employment and ordered that she be reinstated in a similar position in another store.³ However, the Full Bench of the AIRC overturned the decision to reinstate the employee, principally on the basis that despite the inherently personal nature of her activities, she failed to answer questions concerning her conduct honestly during her employer's investigation, which destroyed the relationship of trust and confidence and provided a valid reason for her dismissal.⁴
• An employee who told his boss to "f*** off" at a work Christmas party and engaged in sexually inappropriate behaviour towards multiple female colleagues when the party moved onwards to a public bar area, after being served unlimited drinks, which were paid for by his employer. After being dismissed, the employee lodged an unfair dismissal claim and the Fair Work Commission (Commission) found that in the context of the employee's near-perfect employment record and his state of intoxication, the dismissal was unfair. The Commission held that the manner in which alcohol was served at the event was a significant exacerbating factor, as there was unlimited service of alcohol and no managerial supervision of the consumption of the alcohol.⁵
• An employee who was intoxicated at a work Christmas party and threw a glass of beer near a security guard after claiming that a bartender made a racial slur towards him. The employer's decision to dismiss the employee was upheld by the Commission, which noted that the employer sought to have appropriate limits on the service of alcohol.⁶

What measures should employers implement to minimise risks to health and safety?

To protect employees and ensure their duties are met, employers should adopt the following.

Conduct an internal risk assessment

A risk assessment of the proposed event must be undertaken, including considering matters such as:

• maximum capacity numbers
• opportunities for physical distancing
• engineering controls such as ventilation
• personal and hand hygiene, including availability of hand sanitiser
• ensuring food is handled by single serve and maintained to an appropriate COVID-safe standard
• regular cleaning of areas
• evidence of vaccination against COVID-19 of all attendees
• rapid antigen testing for attendees
• wearing of face masks and other appropriate personal protective equipment where necessary.

It may be worth considering if the event can be held outdoors to minimise the spread of infection, or if numbers can be reduced in attendance. Prepare a COVID-safe plan for the workplace event and distribute this prior to the celebration day.

Update internal policies and procedures

Ensure all internal policies and procedures relating to workplace behaviour, namely workplace health and safety, bullying, sexual harassment and COVID-19 safety are up to date, including with a robust procedure outlined for employees to follow if they experience or witness behaviour they consider to be inappropriate.

Remind employees of their obligations

Before events, remind employees about their responsibility to exhibit appropriate workplace behaviour and to comply with appropriate workplace behaviour policies, workplace codes of conduct and organisational values.

It is not enough to simply have policies in place that prohibit inappropriate behaviour. Employees must be aware of and understand the policies, including that a failure to comply may result in disciplinary action, such as potential termination of their employment, and/or legal proceedings being brought against them personally.

COVID-19 has introduced an additional element, being how to navigate the workplace end-of-year celebration with COVID-safe mechanisms in place. Employers will be required to document and implement control measures to address the risk of COVID-19 transmission in the workplace, such as reminding staff to stay home if they feel unwell, ensuring that only fully vaccinated employees attend the event and confirming that the venue has appropriate COVID-19 safe practices.

Monitor issues

Ensure there is plenty of food available at the function and that alcohol is served responsibly. Designate a sober individual to supervise any event to ensure that occupational health and safety risks are eliminated or at least, minimised. Ensure employees can return home safely from the event by paying for an Uber or providing cab charges.

What COVID-19 restrictions do employers need to consider?

While Australia is moving towards a "living with COVID" future, there remain restrictions in effect across states and territories as the borders remain closed. An overview of these restrictions is provided below.

State	Vaccination requirements	Restrictions for venues (e.g. restaurants/bars)
Queensland	Mandatory vaccinations for healthcare, aged care, quarantine and essential workers crossing into QLD from interstate. No mandatory vaccination direction for remaining population in effect, however, vaccination restrictions will be introduced on 17 December 2021.	Fully vaccinated people will only be permitted to enter venues from 17 December 2021.  Unvaccinated people will not be permitted to enter at all.
New South Wales	Mandatory vaccinations for healthcare workers, aged care facilities, education and care workers.  No mandatory vaccination direction for remaining population in effect.	Entertainment facilities and indoor major recreation facilities are restricted to the greater of 100% of fixed seating or 1 person per 2 square metres.  Outdoor major recreational facilities are restricted to the greater of 100% of fixed seating and 1 person per 2 square metres in any unfixed seating areas or 1 person per 2 square metres. Outdoor events must have a COVID-safe plan.  Unvaccinated people are not permitted to enter these facilities.
South Australia	Healthcare workers, aged care and disability support workers, education workers, police workers and passenger transport workers require mandatory vaccinations.  No mandatory vaccination direction for remaining population in effect.	Density of 1 person per 2 square metres, when seated 3 people per 4 square metres. Must have an approved contact tracing system if food and beverage consumed while standing or any private activity with more than 50 attendees. Limit of 150 people (at non-residential premises). A maximum of 50 people permitted to dance at any time where up to 150 people are present. A COVID Marshal is required for between 51 and 150 people present.
Victoria	Evidence of COVID-19 vaccination must be provided across several industries before work may commence outside their home.	Individuals must be fully vaccinated before they can attend food and drink venues, nightlife venues, entertainment venues, events, tourism venues and casinos/gaming venues.
Western Australia	A mandatory vaccination policy has been introduced across the majority of industry sectors before 1 December 2021. Find more information here.	There are currently no capacity restrictions in effect for venues and events. A COVID-Safe plan and contact check-in is mandatory.
Tasmania	Mandatory vaccinations required for aged care workers, healthcare workers, quarantine workers, quarantine transport workers, and disability support workers.	Fully vaccinated people will only be permitted inside pubs, night clubs and music events from 6 December 2021.
Australian Capital Territory	Residential aged care facility workers, education, health care, disability support workers all require mandatory vaccinations.   No mandatory vaccination direction for remaining population in effect.	All organised events must develop a COVID Safety Plan. Density limits of one person per two square metres will apply for all indoor spaces (exc. staff). 25 people across the venue before density limits apply (exc. staff). If businesses wish to have more than 25 people, they can apply: One person per two square metres per usable indoor space (exc. staff). No density limits apply to outdoor spaces. Eating and drinking while standing is permitted. Dancing is permitted. Venues to display a sign at the entrance of each space specifying occupancy limit for any indoor spaces.
Northern Territory	Mandatory vaccinations for education workers, people who work in customer-facing roles, people who work with vulnerable people and people who work in Aboriginal communities and the community services sector.	COVID-Safe plan must be in place.  1.5m distance between individuals.  Contact check-in at all venues. COVID Safety Supervisor must be present.

The end of the year is an appropriate time for an internal review of policies, procedures and general training to be made available for employees prior to the end-of year festivities.

Employees are undoubtedly excited at the prospect of coming together to celebrate the end of another long year, but after months of only virtual interactions, it's more important than ever that employers take all reasonable precautions to ensure their fiesta doesn't turn into a legal fiasco. We recommend employers contact our Workplace Relations and Safety team to obtain expert legal and practical advice on how to navigate the added complexities of hosting a festive function in the midst of the COVID-19 pandemic, and of course, to assist in managing any mishaps that may arise.

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¹Paul Brown v Aristocrat Technologies Australia Pty Ltd [2005] AIRC 656.

²Example provided by the Victorian Employers’ Chamber of Commerce and Industry.

³Streeter v Telstra Corporation Limited [2007] AIRC 679.

⁴Streeter v Telstra Corporation Limited [2008] AIRCFB 15; (2008) 170 IR 1.

⁵Keenan v Leighton Boral Amey NSW Pty Ltd [2015] FWC 3156.

⁶Sione Vai v ALDI Stores (A Limited Partnership) [2018] FWC 4118.